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What You Can’t Say at Harvard Law School

By Barry Gewen September 24, 2008 1:34 pmSeptember 24, 2008 1:34 pm

Langdell Hall, Harvard Law School (Charles Krupa/Associated Press)

Harvey Silverglate is a lawyer, newspaper columnist, blogger, civil liberties activist and author (“The Shadow University: The Betrayal of Liberty on America’s Campuses,” written with Alan Charles Kors). I’ve known him for many years, and consider him as close to a free-speech absolutist — in the worthy tradition of former Supreme Court Justice Hugo Black — as anyone currently engaged in the never-ending battle against censorship. One doesn’t have to agree with every position Silverglate takes — I doubt he expects that. But it’s good for the culture and the country to have him out there, arguing, badgering, publicizing, provoking.

Unsurprisingly, his libertarian ire was aroused recently by the criticism that descended on The New Yorker for its parodistic cover of Michelle and Barack Obama, and he took the occasion to write a column for The Boston Phoenix on the death of parody on American college campuses, more particularly at Harvard Law School. It received “more of a response than any of my columns in recent memory,” Silverglate says. “My e-mail in-box was jammed with messages.”

Why did Silverglate use The New Yorker cover as a springboard to talk about college campuses? Because they have been the focus of much of his work for quite a while now — not only in his book about free speech in the university but also through his activities as chairman of the board of directors of the Foundation for Individual Rights in Education.

Many of us think of censorship issues as distant annoyances, no more than alien nuisances, arising when the Yahooville library bans “Catcher in the Rye” or Cretinburg’s school board tries to undermine the teaching of evolution (or, for that matter, when the FCC goes ballistic over Janet Jackson’s nipple). But several of the fiercest and most important free-speech controversies are in fact taking place much closer to home.

On many campuses, speech has been restricted to protect those viewed as weak, helpless or vulnerable (that is, women and minorities) against harassment and intimidation. Many otherwise liberal people see this impulse as more legitimate than the Yahooville librarian’s, but the result is the same. The heavy hand of the censor is around people’s throats.

Silverglate’s column described events at Harvard Law School, where a sexual harassment speech code was adopted after a student parody of a woman law professor sparked a huge outcry. The code prohibits speech that creates “an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment.” In other words, parodists beware!

The worst kinds of hate speech are protected by our Constitution, but as Silverglate points out, private universities are free to make their own rules for which speech is acceptable on campus and which is not. So Harvard Law School has used its freedom to adopt a speech code abridging freedom of speech, and this has created a mind-boggling situation. In words that should haunt anyone who cares about the health of our society, Silverglate writes: “In Cambridge, one may not safely say in Harvard Yard what is constitutionally protected in Harvard Square.”

In addition to actual censorship, law schools students encounter the chilling effect. Debt-laden law students who need jobs upon graduation are unable to express opinions that are counter to the prevailing conventional wisdom. Every decent sized law firm has made an effort to hire minority associates – imagine what would happen to a law student who suggests that the treatment of minority students at school is over the top. Goodbye career.

An oldie but goodie on this topic–the collision of liberal free speech advocates and hate speech on campus–is Stanley Fish’s “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too,” reprinted in the book of the same name. I’d love to hear what Fish has to say in response to Silverglate.

I highly doubt anyone is policing conversations between co-eds in the “Harvard Yard.”

The classroom is an entirely different issue. When a student’s speech acts in a manner that could intimidate or degrade another student’s participation, the integrity of the classroom is compromised.

Parodists beware? No, you’ve missed the point entirely. The code suggests – “Parodists, consider the fact that humor is a powerful tool in reinforcing oppressive systems that aren’t welcome in the classroom setting.”

Humor is indeed a powerful tool – a tool for communication. Once that tool is confused with tools for physical intimidation, then, of course, all free speech is endangered. Perhaps Wyatt prefers to protect speech only when it is innocuous, but not when it hurts. And which czar shall we appoint to make those distinctions and sit in the censor’s seat?

This conversation shouldn’t stop here.

You can read my blog at //www.thefreeforall.net, and I encourage you to leave comments there as well. Or check out other cases where campus speech has been threatened at the Foundation for Individual Rights in Education website (www.thefire.org) or the FIRE’s blog (//www.thefire.org/index.php/torch)

Only when political correctness, born of an admiration for and fealty toward authoritarian leaders and thought systems, is soundly and decisively rejected by students will the kind of free speech and freedom of thought traditionally associated with campus life be restored to American college campuses.

What is so interesting to me about this blog entry is that there are so few comments. I would have thought that there would have been some discussion about prudishness, good taste, political correctness, antisocial speech, and so forth — also to what extent the doctrine regarding “shouting ‘fire’ in a crowded theater” could be or should be applied to perceived social harm as well as to obvious physical harm.

Humor is indeed a powerful tool, but what happens when your attempt at parody fails, and in the process of failing proves itself to be a tired rehash of stereotypes as well as lacking in any subtlety or finesse?

Humor and parody are not synonymous. Attempts at parody are not always successful, and the would-be parodist is hardly the best judge of that success.

Whom is making fun of whom? This matters. Power dynamics matter. Physical intimidation is not the only kind of intimidation that matters and the tool of humor can be used quite effectively for social and intellectual intimidation. Is intimidating speech protected? Often. But those who are intimidated have a right to seek protection.

wyatt and Atena seem (to me) be talking past Harvey Silverglate’s two concerns, which concerns the quality of their participation on this thread implies they share.

Silverglate accepts that the instrumentality of “humor” is not necessarily constructive, or at least neutral, with respect to dialogue. For example, a satirical performance can easily become intimidating (and, as Atena remarks, not just ‘physically’ in the reputation ecology of, say, a university or university town).

One problem: who will guard the guardians? Themselves (as each morally rational person does), within or co-ordinated by the framework of a citizen-sensitive apparatus which is independent of security professionalization (call this apparatus a ‘democratic government’, if the title fits). In other words, intimidation of expression of opinion ought to be legislatively (statutorily and enforcedly) confrontable. Does this work without constant exercise of vigilance over (against?) the invigilators?

Silverglate’s category of ‘pain’ foregrounds the other problem: the cases in which victimization is itself the tool of intimidation. In a society that gives the highest priority, the most power, to the most sophistical idea of rhetoric (Harvard Law, indeed), we can’t categorically discern the truth among innocents, rapists, and rape-criers.

I think the best we can do is in ‘court’ systems in which free speech and anti-harrassment rules (generalizations) can be balanced against each other by advocates in specific ‘cases’. Like the Obama magazine cover, which, as Remnick predicted, made the discussion of Obama’s political suitability (generally) more rational rather than less.

To Hudson:

You refer to a desirable ‘restoration’ of “freedom of thought traditionally associated with campus life”. To what period of “American college campus” history do you refer? When, for instance, was Catullus read unexpurgated and Shakespeare fully explained? When were the ambiguities and contradictions of James Madison’s slave ownership taught and debated in class?

“[A]dmiration for and fealty toward authoritarian leaders and thought systems” were always, and remain, the targets of the anti-Stalinist left (who, today, is more of a Leninist than Karl Rove?). Sure, the partial and failed hijacking of the left by identity politics continues to fertilize the lazily self-congratulatory reaction of politically correct anti-“political correctness”. But freedom of thought comes from nowhere other than the protection of perspectival diversity, and it’s progressive politics, despite the metastasy of “political correctness”, that provides the honest and intellectually rigorous framework for enabling real liberty.

If I may be permitted a response to deadgod: I am certainly not shouted down by one voice, yours.

The political correctness I speak of came from the 1960s, though it took two decades to really get going on college campuses. Its heroes were Ho Chi Min, Chairman Mao and Che Guevara. They might have had their merits as national leaders, but all were certainly authoritarian. None was American.

One of the most egregious recent examples of political correctness, at the university of this essay, was the forced resignation of Lawrence Summers from the presidency for his Baconian essay on the subject of women faculty in the sciences at Harvard. Mr. Summers did not argue that women could not do the job; he inquired back from the facts to as to why there were not more women in the sciences at Harvard, which had been actively recruiting women in math and science for some time. For this, for having the temerity merely to discuss the subject openly and honestly, he was canned.

This was not the “failed hijacking of the left by identity politics,” as deadgod asserts, but the brutal triumph of pc politics over anything it disagrees with. They are right, you have no voice. There is no open discussion, no “perspectival diversity,” only their judgment.

Lawrence Summers was already on the bad side of various interests at Harvard because he was abrasive where college presidents are generally slick. This had nothing to do with “PC.” Then he mischaracterized research on gender differences in a highly charged context while delivering a speech to women scientists, many of whom have been discriminated against at one time or another (it wasn’t a “Baconian essay.” Please.)

Part of the job description of a university president is being a politician and not ticking off people unnecessarily. Summers failed at this, and was canned. I would have more sympathy for him if he was now driving a cab, but he seems to have landed okay.

If you work as an educator, you have the responsibility to provide an environment in which learning can happen. This means that in fact, there are some things that it’s irresponsible to say to your class. Can you say them in the hall outside of class? I think if you’re in a position of authority, you probably shouldn’t. When I was a physics undergrad, a visiting professor told a sophomore girl, “Women can’t do physics.” He said it at lunch, not in the classroom, but it was still irresponsible.

I agree with your position on the case you select: Summers was drummed out with absurdly false arguments.

(He was NOT saying that women can’t ‘do science'; he was just wondering whether the under-representation of women in the sciences and math has, in addition to social causes he never diminished nor negated, biological roots- a possibility any real experiemental or theoretical scientist would examine before rejecting and reject (as a scientist) only disinterestedly and after some hypothesis-testing procedure or rationale. The female scientists who dismissed him out-of-hand on the grounds of their existence(s) as both women and scientists were being either unhelpfully (and anti-scientifically) malicious or (not good for pro-affirmative action ‘logic’) ignorant.)

But, Hudson, in referring to the “’60s”, you refer to the time precisely when such arguments as Summers introduced in an off-hand, but public, remark were raised into public discourse. In his case, his (reasonable and defensible) position was “shouted down”; but mentioning Cliche Guevara, and as a non-“American” (?), as a way of smearing the whole of the 1960s’ opening of the academy by association with (I insist) the “hijacking of the left” is muddle-headed. (That is, the ’60s included metastatic “p. c.”, but was not limited to this witch-huntery. You and I, for example, are free to support a discussion of Summers’ point, and his (brief) fate (he’s still a big-shot); before the ’60s, how welcome were women, including the few geniuses who made their ways ‘in’, in the laboratory?)

The right has obstructed the ‘freedom’ (even simply to speak) of Summers’ antagonists every step of the way since long before “political correctness”; of course the left has an (I assert) uncharacteristic faction of hysterical reaction. (Summers could have not quit, and, instead, made the nitwits PROVE, as they never could have, that he was responsible for the misogynistic calumny they (with unwitting irony) accused him of. His decision to flee that particular field reflected a pragmatic understanding of the proverb “you can’t ‘argue’ with an idiot”.)

In casting the blanket of “political correctness”, Hudson, are you doing what you say you despise? Is the pejoration “political correctness”- odiously politically correct?

Your opening ‘response’ (to having been, or not, “shouted down”) recalls Silverglate’s warning: the legibility of satire ought never to be governed by the weakly lettered.

I have seen videos coming from Europe and Latin America in “You Tube” that shows political, social [in Mexico tv comedies make fun on sex and gays] and religious parody are still living and well in those places. The problem is here in USA where we have created an atmosphere of imtimidation to anybody we fear what he/she might say. Threatening speech like saying, “I’ll kill you Bozo the Clown” I can understand that some limit must be put. But saying that “Bozo the Clown is an idiot”, and somebody criticize me for making the comments is taking this too much. To hell with political correctness.

I am a also a hard core free speech libertarian. But I also believe that private institutions should be allowed to make their own rules, even if I find such rules objectionable. Therefore, Harvard is entitled to restrict any and all kinds of speech within the confines of its campus.

How much public money is invested in “Harvard”? And how much power do Harvardlings exercise thanks, in part, to the protections and enhancements it and they enjoy as an American institution and its constituents?

The libertarian idea that there is government and not-government, that one’s choices consist of more or less government, is simple-minded.

The real political-economic choice is between public government and private government. Public government in America still means imperfectly, sometimes cripplingly so, democratic sensitivity to citizens. Private governance involves rulers of markets ruling markets. Fiscal libertarians (?) might claim that non-owner and non-management participants in the marketplace (that is, workers, neighbors, and, especially, consumers) govern markets; this assertion would be, characteristically, laughably in error.

Harvard is no more outside the benefits and responsibilities of Constitutional frameworks than any citizen is, even if Harvard can’t be asked with a self-congratulatory sneer to “look elsewhere”.

“I agree with adina. Harvard has the right to decide the rules of taking advantage of its services. As with a truly libertarian market, if you don’t like it, look elsewhere.”-quoted from andrew.

You’re saying that someone has the right to open a private university that teaches that women and African-Americans are inferior to whites? I don’t think so , Bub. Your logic is faulty. There is no “market place of ideas” when it comes to discussions of race and gender.